Overview

A statutory will is a will made on behalf of a person who lacks the mental capacity to make a will themselves, upon application to the Court of Protection. The guidance is set out in the Mental Capacity Act 2005 and any statutory will must be made in the person’s best interests. The Court of Protection will therefore want to ensure that, in making an application for a statutory will, the following has been considered:

  • the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by them when they had capacity);
  • the beliefs and values that would be likely to influence their decision if they had capacity; and
  • the other factors that they would be likely to consider if they were able to do so.

If you are likely to be affected by a statutory will application then you are entitled to respond and have your say. We are able to advise you whether you wish to prepare a statutory will on someone’s behalf, want to dispute a statutory will application or need to defend a challenge to a statutory will. 

Key contact

Andrew is a partner and head of the neurolaw team at Hugh James. He leads a multidisciplinary team representing only claimants and their families following traumatic brain and spinal cord injury, providing help and support with a heavy emphasis on rehabilitation. The Hugh James Neurolaw Team includes a unique specialist Court of Protection unit, providing professional deputy input to those who lack the necessary capacity to manage and administer their own finances.

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Your questions answered

What is a statutory will?
 

A person must usually have testamentary capacity to make a valid will in England and Wales. However, under the Mental Capacity Act 2005 it is possible to make an application to the Court of Protection to authorise a will to be made on behalf of a person who lacks capacity to make a will for themselves. This is known as a “statutory will”.

When can a statutory will be considered?
 

A statutory will is often appropriate where:

  • a person’s previous will may not reflect a change in circumstances; or
  • there is no previous will and the strict legal rules which govern how an estate is distributed in the absence of a will are not suitable.

The Court will consider a number of factors, chief amongst which are whether granting permission to make a statutory will, and its terms, are in the person’s best interests.

How do I make a statutory will?
 

When making an application you must:

  • establish, with medical evidence, whether the vulnerable person has the mental capacity to make a will;
  • consider the person’s past and present wishes and feelings;
  • encourage the person to contribute to the decision making process; and
  • consider the views of any relevant third parties.

A copy of an application for a statutory will must usually be sent to the vulnerable person and any other relevant parties, including:

  • anyone named in the proposed will; or
  • anyone who would expect to benefit if the vulnerable person died without a will or under an earlier will.

These parties then have the opportunity to raise any objections.

What happens next?
 
If the application is unopposed the terms of the proposed statutory will may be agreed with the parties and the court will then usually consider the application without a hearing. Otherwise, particularly if the application is opposed, the Court of Protection holds a hearing.
Once the Court has accepted the will
 

Once accepted the terms of the will, the will is signed by the applicant and sealed by the court, the will then has the exact same effect as if the vulnerable person signed the will themselves.

Costs of the application
 

The usual rule is that the costs are paid out of the vulnerable person’s assets if the application was a right and proper one to make.

How can we help?
 

The process of making a statutory will can be highly important and a very worth-while and such process requires high degree of sensitivity and understanding of the vulnerable person’s situation and we can be at hand to assist every step of the way.

If you have an elderly relative or if you are appointed as an attorney or deputy for someone who has lost capacity, you may consider that a statutory will is necessary to ensure that their estate is divided as they would wish after their days.

If you are likely to be affected by a statutory will application then you are entitled to respond and have your say. We are able to advise you whether you wish to prepare a statutory will on someone’s behalf, want to dispute a statutory will application or need to defend a challenge to a statutory will.

We have prepared over one hundred statutory wills in Hugh James on behalf of deputies and attorneys. These vary from young adults suffering from brain injuries to elderly clients with dementia.

To obtain professional advice regarding statutory wills please contact us by filling in the form or calling the number at the top of this page.

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